JACKSONVILLE, Fla. – Donald Smith, the man convicted and sentenced to death in the murder of 8-year-old Cherish Perrywinkle, will be back in court Tuesday morning for an evidentiary hearing as he continues to push for a new trial under the claims that his counsel in his 2018 trial was ineffective.
The evidentiary hearing was postponed after one of Smith’s three attorneys suddenly resigned in December.
Smith was convicted of abducting Cherish in 2013 from a Northside Walmart where he had lured her family with promises of buying Cherish and her sisters clothes. Rayne Perrywinkle, Cherish’s mother, called 911 when she realized Smith had left the store with the 8-year-old, and Smith was arrested on I-95 shortly before the girl’s body was found in a creek.
Belkis Plata, a Jacksonville attorney unaffiliated with the case, was working as a public defender when the Amber Alert for Cherish went out.
“I think everyone was so hopeful that the police would find this little girl and that she would be returned to her family alive and well. And it did not happen that way. The tragedy of what happened to her, I think, is what has stuck with people all of these years, knowing what that little girl went through. People want to see justice,” she said.
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In a 78-page appeal from 2023, Smith’s attorneys argued that many errors were made in his trial that led to the penalty phase where he was sentenced to death. They said that his original conviction wasn’t valid because his former lawyers failed to remove a biased juror and failed to object to a 911 call and “digitally altered photographs.”
Plata said this puts his former defense attorneys and the prosecution in a situation we don’t often see.
“They were previously adversaries. They were representing Mr. Smith, and the state was representing the people of the state of Florida. And now the prosecution wants the conviction to stand firm, and therefore, they’re going to be the ones protecting his defense lawyers. Basically, taking up whatever issue Mr. Smith has and saying, ‘No, they did these things properly,’” Plata said.
During the evidentiary hearings, Smith’s attorneys will call witnesses to the stand and present physical evidence to the judge in hopes of getting Smith a new trial.
Plata said a decision from Tuesday’s hearing could take days or even months. She also said the lengthy appeals process can be painful for the victim’s family.
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“A lot of people think that a jury verdict is final. And that brings finality to the case. And that’s just not the case at all, especially not in these types of cases and death penalty cases, the appeals process is extremely long,” she said. “I think the community as a whole felt that loss and stands by the mom in hoping that someday she’ll be able to get closure and really try to move past this.”
Smith’s hearing begins at 10 a.m. and could last two days. New4JAX will have a crew there to bring the latest updates.